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i  v\^Ll7(     ^  <-'^  1-'  ,/  -   ^ 


J- 1  ^' «. 


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BENTHAM 


AND    THE    CODIFIERS. 


BY 


CHARLES  NOBLE  GREGORY,  A.M.,  LL.B., 

ASSOCIATE    DEAN   AND   PROFESSOR   OF    LAW,    COLLEGE    OF   LAW,    UNIVERSITY   OF   WISCONSIN; 

MEMBER   OF  THE   GENERAL   COUNCIL   AND   THE   EXECUTIVE   COMMITTEE    AND 

CHAIRMAN    OF   THE   SECTION   ON    LEGAL   EDUCATION    OF  THE 

AMERICAN    BAR   ASSOCIATION  ;    MEMBER    OF    THE 

INTERNATIONAL    LAW    ASSOCIATION. 


[Reprinted  from  the  Harvard  Law  Review,  Vol.  XIII.,  No.  5.] 


CAMBRIDGE: 

HARVARD    LAW    REVIEW. 

1900. 


/ 


K.y  i.ibna 
C.  K.  OGDEN 


BENTHAM 


AND    THE    CODIFIERS. 


BY 


CHARLES  NOBLE  GREGORY,  A.M.,  LL.B., 

ASSOCIATE    DEAN   AND   PROFESSOR   OF    LAW,    COLLEGE   OF   LAW,    UNIVERSITY   OF    WISCONSIN; 

MEMBER   OF   THE   GENERAL   COUNCIL   AND   THE   EXECUTIVE   COMMITTEE   AND 

CHAIRMAN    OF  THE   SECTION   ON    LEGAL  EDUCATION   OF  THE 

AMERICAN    BAR   ASSOCIATION  ;    MEMBER   OF    THE 

INTERNATIONAL    LAW   ASSOCIATION. 


[Reprinted  from  the  Harvard  Law  Review,  Vol.  XIII.,  No.  5.] 


CAMBRIDGE: 
HARVARD    LAW    REVIEW. 

1900. 


^3i(yl 


««N'VEBs,n"'o^*f.T,^ 


BENTHAM   AND   THE   CODIFIERS.* 

IN  the  same  year  in  which  our  Declaration  of  Independence,  writ- 
ten by  a  disciple  of  French  thought,  was  adopted  by  the  rep- 
resentatives of  the  colonies,  there  was  published  anonymously  in 
London  a  pamphlet  entitled  "  A  Fragment  on  Government,"  or, 
as  it  has  been  called,  "  A  Comment  on  the  Commentaries."  It 
attracted  extraordinary  attention  and  was  attributed  to  the  most 
eminent  lawyers  and  statesmen  of  the  time,  as  Lord  Mansfield, 
Lord  Camden,  or  Mr.  Dunning,  later  Lord  Ashburton.  Its  real 
author  was  Jeremy  Bentham,  a  young  barrister,  the  son  of  a  pros- 
perous attorney,  and  it  was  the  beginning,  not  of  official  or  financial 
advancement,  but  of  a  great  fame  and  a  great  influence. 

The  pamphlet  in  question  was  in  the  nature  of  a  declaration  of 
independence  of  professional  tradition,  and  took  the  form  of  a 
severe  criticism  on  the  Commentaries  of  Blackstone,  to  which,  when 
delivered  as  lectures  to  undergraduates  at  Oxford  by  their  courtly 
compiler,  Bentham,  a  youth,  had  listened  with  a  rebel  heart.  This 
famous  brochure  is  often  spoken  of  as  "  the  beginning  of  modern 
English  legal  criticism  and  reform."  Of  course  there  are  no  be- 
ginnings and  no  endings  to  such  large  matters,  and  this  radical 
utterance  was  only  one  of  many  phenomena  attending  a  world-wide 
movement,  of  which  the  French  Revolution  was  the  most  convulsive 
and  the  American  Revolution  the  most  sustained  and  successful 
incident.  Bentham  has  been  deemed  closer  to  the  French  En- 
cyclopedists than  to  any  English  school  of  writers,  and  he  received 
and  accepted  French  citizenship,  which  was  conferred  on  him  by 
the  national  assembly,  on  the  motion  of  Brissot,  in  1792. 

His  little  book  was  hailed  as,  and  has  remained,  a  living  force 
in  liberalism,  opposing  itself  to  the  conservative  spirit  which  has 
always  so  strongly  marked  the  English  bar,  and  which  Bentham 
freely  attributed  to  the  lowest  forms  of  self-interest,  saying,  "  It  is 


as  impossible  for  a  lawyer  to  wish  men  out  of  litigation  as  for  a 
physician  to  wish  them  in  health."  ^ 

In  the  preface  to  Bentham's  collected  works,  edited  by  Sir  J. 
Bowring  and  published  at  Edinburgh  in  1838,  it  is  pointed  out  that 
"  the  circumstance  that  seems  to  have  given  the  first  impulse  to 
the  inquiries  which  engrossed  his  future  life  was  the  dispute 
between  Great  Britain  and  her  colonies,  which,  during  his  law 
studentship,  was  the  universal  topic  of  conversation ;  "  so  we  of  this 
country  find  a  certain  connection  between  the  revolt  of  the  philos- 
opher and  of  the  colonies,  and  follow  with  especial  interest  the 
results  of  the  new  teaching. 

Bentham  found,  after  some  vacillation,  in  Hume's  essays  an 
unassailable  central  principle,  the  principle  of  utility  as  a  test  of 
moral  precepts  and  legislation,  looking  to  their  tendency  to  promote 
the  greatest  possible  happiness  of  the  greatest  possible  number. 
To  this  test  he  adhered,  and  he  applied  it  with  great  boldness,  and, 
it  may  be  often  said,  eccentricity,  to  all  departments  of  morals,  law, 
and  government  until  his  death,  in  1832,  at  the  great  age  of 
eighty-four  years. 

Lord  Loughborough  declared  the  principle  dangerous,  but  forty- 
six  years  after  he  had  first  in  print  maintained  it,  Bentham  noted 
that  Loughborough's  remark  was  shrewd  and  strictly  true,  as  to 
the  sinister  interests  of  such  a  functionary,  since  in  a  government 
modelled  on  these  principles,  his  Lordship  could  not  have  been 
*'  attorney  general  with  ;^  15,000  a  year  nor  chancellor  with  a  peer- 
age, with  a  veto  upon  all  justice,  with  ^25,000  a  year,  and  with  five 
hundred  sinecures  at  his  disposal." 

Bentham  was  not  merely  critical  but  constructive  as  well.  He 
did  not  confine  himself  to  laying  down  principles,  but  soon  sought 
to  furnish  minutely  formulated  codes  of  law  and  procedure  accord- 
ing with  these  principles,  not  only  for  his  own,  but  for  all  countries, 
whether  he  had  any  knowledge  of  their  languages,  customs,  neces- 
sities, history,  and  feelings  or  not.  Law,  like  tinned  roast  beef,  he 
thought  susceptible  of  export  without  deterioration  and  fit  for  con- 
sumption in  any  clime.  "  Laws  need  not  be  of  the  wild  and  spon- 
taneous growth  of  the  country  to  which  they  are  given,"  he  wrote ; 
"  prejudice  and  the  blindest  custom  must  be  humored,  but  they 
need  not  be  the  sole  arbiters  and  guides."     "  Legislators,  who, 

1  J.  S.  Mill,  with  more  just  discrimination,  has  attributed  this  conservatism  "  in 
part  at  least,  to  the  extreme  difficulty  which  a  mind  conversant  only  with  one  set  of 
securities  feels  in  conceiving  that  society  can  possibly  be  held  together  by  any  other." 


having  freed  themselves  from  the  shackles  of  authority,  have  learned 
to  soar  above  the  mists  of  prejudice,  know  as  well  how  to  make 
laws  for  one  country  as  for  another,"  —  though  he  admits  they 
required  some  data  as  to  the  circumstances  of  those  for  whom  they 
deal. 

Montesquieu  had  expressed  the  opposite  belief,  saying  "  that  it 
is  very  improbable  that  the  laws  of  one  nation  can  ever  be  suited  to 
the  wants  of  another  nation ;  "  but  Bentham  contended  that  for 
drafting  codes  foreigners  were  preferable  as  more  unprejudiced. 

Of  this  sort  of  universal  philosophical  codification  for  which 
Bentham  labored  so  long  and  corresponded  so  widely,  the  Hon. 
Lord  McLaren  has  lately  very  justly  said,  "  This  type  of  code  need 
not  be  further  considered.  No  state  which  has  grown  up  under  a 
reasonably  good  legal  system  would  agree  to  abandon  its  native 
institutions  and  accept  a  system  of  laws  devised  by  philosophers ;  " 
and  again,  "  A  philosophical  code  may,  like  a  new  constitution,  be 
made  in  the  time  spent  in  writing  it:  in  an  age  of  shorthand  and 
typewriting  machines,  this  time  need  not  be  considered."  ^ 

It  may  be  mentioned  in  passing  that  a  constitution  prepared  by 
eminent  lawyers,  after  a  comparative  study  of  existing  constitutions, 
would  hardly  seem  to  share  the  objections  indicated.  Such  a  draft 
constitution,  drawn  at  the  enlightened  request  of  Mr.  Henry  Vil- 
lard  by  a  number  of  distinguished  legal  scholars  and  practitioners, 
among  them  Professor  Thayer  of  Harvard  Law  School  and  Mr. 
Beeman  of  New  York,  was  offered  to  Montana,  on  its  becoming  a 
State,  but  its  provisions  were  only  in  part  adopted. 

Sitting  at  his  Hermitage  in  Queen's  Square  Place,  Westminster, 
watching  the  politics  of  the  world,  Bentham,  or  "  the  Hermit,"  as 
he  loved  to  call  himself,  did  not  hesitate  to  address,  by  post  or  the 
public  press,  potentates  or  powers,  wherever  circumstances  seemed 
to  make  it  probable  that  a  change  of  law  was  contemplated  or  pos- 
sible, and  to  offer  his  services  to  advise  on  any  measure  in  discus- 
sion or  to  furnish  a  complete  code.  So  he  addressed  Alexander  I., 
the  Emperor  of  all  the  Russias,  the  people  of  Spain,  Simon  Snyder, 
Governor  of  Pennsylvania,  his  fellow-citizens  of  France,  "  James 
Madison,  then  President  of  the  Congress  of  the  American  United 
States,"  Mehemet  Ali,  Albert  Gallatin,  Prince  Adam  Czartoriski  of 
Poland,  and  in  a  circular  communication,  "  the  respective  governors 
of  the  American  United  States,"  and  in  a  series  of  letters,  "  The  Cit- 

1  9  Juridical  Rev.  1-3. 


^ 


izens  of  the  several  American  United  States,"  He  even  proposed 
that,  as  we  were  not  the  only  United  States  of  America,  and  as 
the  name  "  The  Anglo-American  United  States  "  was  a  circumlo- 
cution, we  should  rename  our  country  "  Washingtonia,"  ^  and  ad- 
vised us  to  "  shut  our  ports  against  the  common  law  as  "  we  "  would 
against  the  plague."  ^ 

Sir  Henry  Maine  has  since  taught  that  many  of  the  earliest  ideas 
of  man  are  reflected  in  ancient  law,  and  that  from  their  study  can 
be  traced  "  the  steady  progress  of  mankind  from  an  age  of  formal- 
ities and  ceremonies  to  an  era  of  simplicity  and  symmetrical  devel- 
opment." The  fact  that  human  laws  and  morals  are  as  much  the 
result  of  a  "  steady  progress  "  of  development  as  human  bodies  was 
not  dreamt  of  in  Bentham's  philosophy,  and  this  seems  its  capital 
defect. 

He  regarded  right  and  justice  as  abstractions  having  their  un- 
changing form  as  much  as  mineral  crystals,  the  same  for  all  times 
and  all  men,  and  that  laws  should  be  shaped  accordingly.  And 
yet,  in  rather  an  amusing  way,  his  offers  to  amend  the  law  of  other 
nations  were  largely. attacks  upon  and  campaigns  against  the  defects 
of  the  law  in  his  own  country. 

Comparatively  recently  there  has  been  completed  a  most  in- 
structive examination  of  his  influence  upon  the  affairs  of  a  foreign 
nation  whose  legislation  he  earnestly  sought  to  dominate,  which 
seems  to  throw  light  upon  the  fate  of  most,  if  not  all,  of  the  direct 
attempts  of  the  sage  to  be  a  lawgiver  to  the  nations.  In  an  ex- 
tended discourse  on  "The  Influence  of  Bentham  upon  Lawyers 
and  Politicians  in  Spain,"  delivered  by  Don  Luis  Silvela  on  being 
received  into  the  Spanish  Royal  Academy  of  Moral  and  Political 
Science  in  1894,  Don  Luis  finds,  from  an  examination  of  the  records 
of  the  Cortes  and  the  history  of  his  country,  little,  if  any,  recogni- 
tion of  the  influence  of  the  London  Hermit,  nor  can  he  find  that 
Bentham's  letters  to  the  Spanish  people  were  either  preserved  by  the 
Conde  de  Toreno,  President  of  the  Cortes,  to  whom  they  were  sent 
in  response  to  a  letter  from  him  asking  Bentham's  advice,  or  ever 
translated  into  the  Spanish  tongue.  The  philosopher  seems  to  have 
addressed  the  Castilian  with  discourteous  reflections  on  his  motives, 
and  to  have  been  answered  civilly  but  coldly,  and  thereafter  ignored. 

His  discussion  of  the  proposed  upper  chamber  in  the  Spanish 
government  seems  to  have  been  a  repetition  of  his  objections  to 

1  Vol.  8,  p.  569.  2  Vol.  3,  p.  304. 


Ji- 


the  English  House  of  Lords,  and  written  without  investigation  or 
knowledge  of  Spanish  institutions  or  sentiment.  Bentham  later 
published  these  letters  in  England,  and  his  letters  to  Madrid 
belong,  as  Senor  Silvela  sharply  observes,  "  to  the  homeward  mail," 
and  seem  to  have  been  part  of  his  war  on  the  house  of  peers  of  his 
own  country.^ 

In  Portugal  the  Cortes,  on  receipt  of  Bentham's  gift  of  his  works, 
ordered  them  translated  at  the  public  cost,  and  his  letter  was  read 
aloud  in  the  legislative  halls.  The  proposed  constitution  was 
adopted  freed  from  the  defects  he  had  pointed  out,  and  almost  at 
once  collapsed. 

But  while  his  codes  were  not  adopted,  it  is  quite  certain  that  his 
ideas,  or  a  great  many  of  them,  were  assimilated,  if  we  may  use  a 
word  which  seems  most  fit.  It  has  been  freely  said  that  hardly  an 
important  reform  in  law  has  been  effected  within  this  century  which 
Bentham  had  not  foreshadowed  and  early  advocated. 

Thus  he  devoted  five  large  volumes  to  the  "  Rationale  of  Judicial 
Evidence,"  and  among  other  points  strongly  objected  to  the  exclu- 
sion of  witnesses  on  the  ground  of  interest,  urging  that  interest 
might  affect  the  credibility  but  not  the  admissibility  of  evidence. 
That  view  has,  in  the  main,  prevailed  and  been  established  in  the 
law  of  both  England  and  America  ;  and  the  recent  enactment,  long 
familiar  to  us,  which  in  England  permits  one  accused  of  crime  to 
testify  in  his  own  behalf,  and  which  has  so  divided  and  excited  the 
English  bench  and  bar,  is  only  a  further  extension  of  Bentham's 
ideas. 

He  declared  against  exclusion  of  testimony  on  the  ground  of 
religious  opinions,  and  the  contention  has  been  so  successful  that 
the  constitutions  of  many  of  our  States  (as  my  own  State  of  Wis- 
consin) enact  as  fundamental  law  that  "no  person  shall  be  ren- 
dered incompetent  to  give  evidence  in  any  court  of  law  or  equity  in 
consequence  of  his  opinions  on  the  subject  of  religion." 

He  advocated  the  registration  of  real  property,  which  is  now  a 
common  practice.  He  assailed  laws  against  usury,  and  England 
has  repealed  and  this  country  greatly  moderated  them.     He  advo- 


t: 


4^ 


1  See  Spanish  view  of  "Bentham's  Spanish  Influence,"  by  Courtney  Kenney,  ii 
L.  Q.  R.  p.  48.  However,  it  should  not  be  overlooked  that  the  Patriotic  Society  of 
"  the  Friends  of  the  Constitution  "  in  Spain  made  Bentham  an  honorary  associate  in 
1820;  that  Don  Augustin  Arguelles,  Minister  of  the  Interior,  requested  his  opinion  as 
to  trial  by  jury,  the  prison  committee  of  the  Cortes  reported  in  favor  of  his  Panopticon 
principle  for  the  prisons  of  the  kingdom  in  the  same  year,  and  at  least  two  deputies 
wrote  him  for  aid  in  shaping  the  laws  of  Spain. 


-fc   ^. 


•■'^^ 


W^ 


Jt. 


8 

cated  receiving  the  testimony  of  witnesses  previously  convicted  of 
crime,  and  it  is  now  received  in  both  England  and  America.  He 
vigorously  opposed  "  death  punishment,"  and  the  number  of  crimes 
punished  capitally  has  been  enormously  reduced  in  the  whole  civil- 
ized world,  and  most  notably  in  England  through  reforms  intro- 
duced by  Sir  Samuel  Romilly,  the  attached  friend  and  disciple  of 
Bentham.  In  our  own  country  the  death  penalty  has  been  wholly 
abandoned  in  at  least  four  of  our  States  (in  my  own  State  of  Wis- 
consin it  has  been  unknown  for  forty-six  years  and  with  no  detriment 
to  justice).  In  several  of  the  continental  nations  of  Europe  it  has 
been  wholly  abolished,  as  in  Holland,  Portugal,  and  Italy  ;  and  so 
rarely  inflicted  as  to  be  almost  abolished  in  others,  as  Belgium, 
Bavaria,  Sweden,  and  Denmark;  and  in  the  great  empire  of  Russia 
it  is  abolished  except  as  a  penalty  for  certain  high  political  offences. 

He  advocated  education  to  be  provided  for  and  required  by  the 
government,  and  that  duty  has  been  taken  up  by  many  of  our  States, 
and  is  more  and  more  recognized  in  England. 

He  advocated  freedom  in  devising  and  bequeathing  property,  and 
our  laws  give  the  widest  liberty,  and  the  laws  of  England  have  con- 
stantly tended  in  the  same  direction.  He  advocated  voting  by 
ballot,  long  now  in  use  in  this  country  and  for  some  years  in  Eng- 
land, He  advocated  a  system  of  public  prosecutors,  which  we  have. 
Burton  printed  a  long  list  of  reforms,  first  advanced  by  Bentham 
and  later  adopted  by  legislation ;  and  it  might  now  be  greatly  ex- 
tended, and  I  am  sure  that  ten  years  from  now  it  could  be  still 
more  extended. 

In  fact,  the  majority  of  men,  even  of  the  higher  intelligence,  have 
so  constantly  been  wrong  when  they  have  been  opposed  to  Bentham, 
and  time  has  justified  his  principles  so  often,  that  we  may  well 
doubt  our  conclusions,  not  seldom  the  result  of  mere  inertia,  when 
they  conflict  with  his  teachings. 

Sir  J.  Fitz  J.  Stephen  in  his  history  of  Criminal  Law  concludes 
that  Bentham's  writings  "  have  had  a  degree  of  practical  influence 
upon  the  legislation  of  his  own  and  various  other  countries  com- 
parable only  to  those  of  Adam  Smith  and  his  successors  upon 
commerce." 

Over  and  above  all  the  several  amendments  of  law  which  he 
pressed  for,  Bentham  vigorously  demanded  a  complete  code  of 
laws,  clear,  simple,  shaped  on  the  principle  of  utility,  which  he  had 
advocated,  and  all  comprehensive.  In  his  circular  of  1817  to  the 
citizens  of  the  United  States,  whom  he  addressed  as  "  Friends  and 


fellow-men,"  he  says :  "  Accept  my  services,  —  no  man  of  tolerably 
liberal  education  but  shall,  if  he  pleases,  know  —  and  know  without 
effort  —  much  more  of  law  than,  at  the  end  of  the  longest  course  of 
the  intensest  efforts,  it  is  possible  for  the  ablest  lawyer  to  know  at 
present.  No  man,  be  he  even  without  education  in  other  respects, 
—  no  man  but,  in  his  leisure  hours,  so  he  can  but  read,  —  may,  if  so  it 
please  him,  know  more  of  law  than  the  most  knowing  among  lawyers 
can  possibly  know  at  the  present."  But  notwithstanding,  or,  as 
he  would  have  intimated,  because  of  these  high  hopes  held  out,  his 
correspondence  with  Governor  Plumer  of  New  Hampshire,  with 
Governor  Snyder  of  Pennsylvania,  with  Governor  Nicolas  of  Vir- 
ginia, with  President  Madison,  all  came  to  naught,  and  his  splen- 
did offers  ended  in  civil  expressions  of  regret  from  those  he  had 
addressed. 

When  Romilly  visited  Bentham  at  Ford  Abbey,  where  he  was 
living  671  grand  seigneur,  he  found  him,  as  he  had  found  him  for 
thirty  years,  giving  six  hours  daily  to  writing  on  laws  and  legisla- 
tion and  composing  codes,  and  spending  the  rest  of  his  time  in 
reading  and  exercise,  or,  as  he  himself  said,  "  taking  his  ante-jen- 
tacular  and  post-prandial  walks  to  prepare  himself  for  his  tasks  of 
codification."  Bentham  wrote  in  his  last  days  that  he  was  codify- 
ing away  "  hke  any  old  dragon." 

Yet,  with  curious  disregard  of  a  great  contemporaneous  code,  he 

could  write  tTTe  Emperor  of  Russia  in  1815  of  the  Code  Napoleon, 

"  With  what  degree  of  skill  it  is  made  up,  I  have  never  yet  seen  any 

use  of  inquiring." 

^'^  It  is  perhaps  not  possible  to  trace  to  his  hand  any  legislative  act 

'  in  this  or  any  country. 

X  It  was  long  before  Bentham  that  Pepys  set  down  in  his  Diary, "  Mr. 

Prin,  till  company  come,  did  discourse  with  me  a  good  while  about 
the  laws  of  England,  telling  me  the  main  faults  in  them ;  and, 
among  others,  their  obscurity  through  multitude  of  long  statutes, 
which  he  is  about  to  abstract  out  of  all  of  a  sort  \sic\,  and  as  he 
lives  and  Parliaments  come,  get  them  put  into  laws  and  the  other 
statutes  repealed,  and  then  it  will  be  a  short  work  to  know  the  law." 
It  cannot  yet  be  said  to  be  a  short  work  to  know  the  law,  notwith- 
standing both  Mr.  Prin  and  Jeremy  Bentham. 

Mr.  Leslie  Stephen,  in  his  life  of  his  brother,  Sir  James,  has 
pointed  out  that  "  with  parliamentary  reform  an  era  of  rapid  and 
far-reaching  changes  set  in,  though  Bentham  died  on  the  eve  of 
entering  the  land  of  promise."      That  James  Mill,  on  whom  the 


10 

mantle  of  Bentham  fell,  held  a  leading  position  in  the  India  House, 
and  when  the  charter  of  his  company  was  renewed  in  1833,  one 
year  after  his  master's  death,  hi§  evidence  largely  shaped  the 
alterations  made.  By  its  terms,  one  of  the  four  members  of  the 
Governor-General's  Council  was  to  be  appointed  from  persons  not 
servants  of  the  company,  and  was  to  attend  only  at  meetings  for 
framing  laws.  Macaulay  was  the  first  to  hold  the  appointment* 
and  drafted  the  Indian  Penal  Code.  Mr.  Cameron,  one  of  his  as- 
sistants, was  an  earnest  disciple  of  Bentham.  It  was  not  passed 
until  i860,  after  it  had  been  revised  by  Sir  Barnes  Peacock.  This 
code  was  a  triumph  for  Benthamists,  and  after  twenty-one  years' 
trial  won  the  highest  commendation  from  Stephen  in  his  history 
of  Criminal  Law. 

It  has  served  as  a  model  for  all  the  later  Indian  codes.  It  was  a 
part  of  a  systematic  scheme  of  codifying  since  carried  out.  Sir  J.  Fitz 
J.  Stephen,  a  valiant  Benthamite  till  death,  became  legal  member 
of  the  Indian  Council  in  1869,  and  was  successor  to  Sir  Henry 
Maine.  He  remained  until  1872,  devoting  himself  largely  to  draft- 
ing or  revising  codes  for  India  on  various  subjects,  as  contracts, 
wills,  and  evidence,  which  have  won  great  commendation  from  emi- 
nent Indian  lawyers,  though  with  some  criticisms  as  to  details.  On 
his  return  to  England  he  was  employed  by  the  government  to  pre- 
pare a  draft  evidence  bill,  which  he  finished  in  February,  1873  ;  but 
the  government  went  out  in  March,  and  the  bill,  therefore,  failed  of 
passage.  He,  however,  transported  the  Indian  Code  ideas  and 
methods  into  his  vigorous  agitations  for  and  attempts  at  codifying 
in  England,  interesting  many  high  officials  in  the  subject.  Now, 
as  Sir  W.  H.  Rattigan  has  pointed  out,  India  has  her  Penal  Code, 
a  contract  act,  bills  of  exchange  act,  limitation  act,  registration  act, 
evidence  act,  easement  act,'  and  others,  and  drafts  for  yet  further 
codifying  acts  have  been  prepared. 

Mr.  F.  E.  Montague  has  pointed  out  the  debt  of  the  Anglo-Indian 
Code  to  Bentham,  and  suggested  that  it  may  play  a  part  in  the  East 
hardly  less  momentous  than  did  Justinian's  recension  of  Roman  law 
in  the  West,  powerfully  controlling  the  Oriental  races  while  Eng- 
lish Empire  continues,  and,  like  the  Roman  law,  surviving  though 
the  authority  that  imposed  it  decline  and  fall. 

The  Indian  codes  have  vigorously  reacted  on  English  legislation, 
both  as  models  and  through  eminent  Englishmen  who,  like  Stephen, 
return  from  codifying  in  India  to  shape  legislation  in  England.  No 
one  can  read  the  reports  of  modern  English  courts  without  discover- 


II 

ing  that  Great  Britain  is  now  in  considerable  part  governed  by  an 
elaborate  system  of  parliamentary  laws,  as  the  Bills  of  Exchange 
Act  of  1882,  and  perhaps  the  Judicature  Act,  adopted  within  the 
present  generation,  prepared  by  commissions  or  eminent  legal 
scholars,  aiming  to  codify,  elucidate,  define,  and  modernize  the 
law  on  their  several  subjects. 

David  Dudley  Field,  in  his  arguments  for  codification  before  the 
New  York  legislature,  was  able  to  quote  among  other  passages  the 
following  from  Sir  J.  Fitz  James  Stephen  as  to  the  Indian  codes  : 

"  You  will  naturally  ask  how  this  process  of  codification  has  succeeded  ? 
To  this  question  I  can  answer  that  it  has  succeeded  to  a  degree  that  no 
one  could  have  anticipated,  and  the  proofs  of  the  fact  are,  in  my  mind, 
quite  conclusive.  One  is  the  avidity  with  which  the  whole  subject  is  stud- 
ied, both  by  the  English  and  by  the  native  students  in  the  universities. 

"The  knowledge  which  every  civilian  you  meet  in  India  has  of  the 
Penal  Code  and  the  two  Procedure  Codes  is  perfectly  surprising  to  the 
English  lawyer.  People  who  in  England  would  have  a  slight,  indefinite, 
rule  of  thumb  knowledge  of  criminal  law,  a  knowledge  which  would  guide 
them  to  the  right  book  in  a  Hbrary,  know  the  Penal  Code  by  heart,  and 
talk  about  the  minutest  details  of  its  provisions  with  keen  interest.  I 
have  been  repeatedly  informed  that  the  law  is  the  subject  which  the  native 
students  delight  in  at  the  universities,  and  that  the  influence,  as  a  mere 
instrument  of  education  of  the  codifying  acts,  can  hardly  be  exaggerated. 
I  have  read  in  native  newspapers  detailed  criticisms  on  the  Evidence  act, 
for  instance,  which  proved  that  the  writer  must  have  studied  it  as  any 
other  literary  work  of  interest  might  have  been  studied.  ...  I  once  had 
occasion  to  consult  a  military  officer  upon  certain  measures  connected 
with  habitual  criminals.  He  was  a  man  whose  life  was  passed  in  the 
saddle,  who  had  hunted  down  thugs  and  dacoits  as  if  they  were  game. 
Upon  some  remark  which  I  made  he  pulled  out  of  his  pocket  a  little  code 
of  Criminal  Procedure,  bound  like  a  memorandum-book,  turned  to  the 
precise  section  which  related  to  the  matter  in  hand,  and  pointed  out  the 
way  in  whith  it  worked  with  perfect  precision.  It  is  one  of  the  many  odd 
sights  of  Calcutta  to  see  native  policemen  learning  by  heart  the  parts  of 
the  police  act  which  concern  them.  The  sergeant  shouts  it  out  phrase  by 
phrase,  and  his  squad  obediently  repeat  it  after  him  till  they  know  it  by 
heart.  The  only  thing  which  prevents  English  speaking  people  from  seeing 
that  the  law  is  really  one  of  the  most  interesting  and  instructive  studies 
in  the  world  is  that  English  lawyers  have  thrown  it  into  a  shape  which  can 
only  be  described  as  studiously  repulsive." 

The  "  Code  Frederic,"  or  "  Landrecht,"  of  Prussia,  promulgated 
in  1 75 1  under  the  authority  of  Frederick  the  Great,  is  commonly 


12 

classed  as  the  first  of  the  modern  codes  of  Europe.  It  had  among 
its  chief  objects  to  unite  the  discordant  peoples  of  his  newly  ex- 
tended kingdom  by  common  laws,  and  (a  proper  object  for  a  mili- 
tary despot)  to  destroy  the  power  of  the  lawyers,  whom  he  berates 
in  the  introduction.     This,  of  course,  antedated  Bentham's  labors. 

The  next  is  the  "  Code  Napoleon,"  or  as  it  is  called  under  the 
Republic,  "  Code  Civil,"  promulgated  under  the  authority  of  the 
great  Emperor  between  the  years  1804  and  18 10,  and  designed  to 
replace  the  extreme  confusion  of  the  "  droit  ^crit  et  droit  coutiime  " 
of  France,  w^here  Voltaire  had  said,  with  bitter  truth,  that  a  trav- 
eller had  to  change  laws  as  often  as  horses. 

Savigny  complained  of  the  ignorance  and  haste  with  which  it 
was  completed,  and  Austin  follows  him  and  points  out  its  defects  in 
definition,  but  it  has  continued  to  dominate  France  long  after  the 
imperial  house  has  fallen,  and,  having  been  imposed  by  conquest 
or  its  equivalent,  has  been  adopted  and  retained  in  Italy,  Holland, 
Belgium,  the  Rhenish  Provinces,  Poland,  and  Switzerland,  and 
been  a  model  for  other  countries  as  Greece.  Napoleon's  boast, 
"  I  shall  go  down  to  posterity  with  my  code  in  my  hand,"  has  been 
justified. 

Bentham  with  just  pride  pointed  out  in  a  letter  to  the  Emperor 
of  Russia  that  he  alone  of  living  men  was  quoted  in  the  introduc- 
tion to  this  code,  and  his  name  and  doctrines  were  familiar  and 
powerful  in  France  long  before  this  great  work  was  accomplished. 

It  was  upon  this  "  Code  Civil  "  that  M.  Appert,  late  Professor  of 
Law  at  the  University  of  Tokio,  says  the  first  Japanese  Code  was 
shaped,  mainly  owing  to  the  association  of  the  French  Code  with 
the  impressive  name  of  Napoleon. 

Later  codifications  there  have  looked  to  the  draft  code  of  the 
German  Empire  also,  and  a  code  of  civil  procedure  has  been  pre- 
pared by  an  English  barrister. 

Austria  and  Spain  have  long  had  codes  shaped  upon  the  civil  law, 
but  the  great  name  ani  authority  of  Savigny,  Sir  W.  H.  Rattigan 
has  pointed  out,  retarded  codification  in  Germany  until  recently, 
but  a  code  for  the  German  Empire,  after  many  years  of  prepara- 
tion, was  promulgated  in  1898. 

Quebec  has  had  a  "Code  Civil"  since  1865,  and  Canada  ad- 
opted a  criminal  code  in  1892.  This  is  not  meant  as  a  compre- 
hensive list  of  codes  which  is  beyond  the  scope  of  this  article,  but 
as  an  intimation  of  the  wide  recognition  of  the  principle  of  codifica- 
tion and  the  steady  growth  of  such  recognition. 


13 

Bentham  has  not  lacked  followers  in  this  country,  and  one  of  the 
most  potent  in  results  as  well  as  one  of  the  earliest  in  time  was 
Edward  Livingston.  He  was  a  younger  brother  of  Chancellor  Liv- 
ingston, who  administered  the  inaugural  oath  to  Washington.  He 
was  himself  for  six  years  member  of  the  National  House  of  Rep- 
resentatives from  New  York,  and  later  held  simultaneously  the 
places  of  Mayor  of  New  York  and  United  States  District  Attorney. 
Owing  to  a  default  on  his  part  as  to  a  large  sum  of  money  in  his 
hands  as  such  district  attorney,  occasioned  largely  by  the  dishon- 
esty of  a  trusted  clerk,  he  resigned  at  once  both  offices  and  re- 
moved to  the  newly  acquired  territory  of  Louisiana  to  endeavor  to 
retrieve  his  fallen  fortune,  and  there,  immediately,  took  the  leader- 
ship of  the  New  Orleans  bar.  While  in  Congress,  having  already 
fallen  under  the  influence  of  Bentham  through  Duraont's  French  re- 
daction of  some  part  of  his  works,  he  had  sought  to  do  away  with  the 
penalty  of  death  for  federal  offences,  but  without  avail.  He  found 
the  laws  of  Louisiana  in  the  direst  confusion,  consisting  of  Spanish 
law  overlaid  by  French  law,  and  then  by  English  common  law,  as 
the  result  of  the  possession  of  that  territory  by  the  various  powers. 
He  first  drafted  a  brief  code  of  practice  which  was  adopted  by  the 
legislature,  and  later  took  the  chief  part  upon  a  commission  ap- 
pointed to  draft  a  civil  code  for  the  State.  This  too  was,  without 
material  alteration,  enacted  and  became  law. 

In  February,  1821,  he  was  chosen  by  joint  ballot  of  the  general 
assembly  of  Louisiana  to  revise  the  criminal  laws  of  the  State. 
He  was  fifty-seven  years  old,  and  familiar  with  English,  Roman, 
French,  and  Spanish  law.  He  wrote  at  once  to  the  governors  and 
men  of  distinction  in  every  State,  to  the  principal  foreign  ministers 
and  many  publicists  in  foreign  countries,  for  practical  information. 
After  three  years  of  labor  he  completed  a  final  draft  for  the  printer, 
but  it  was  accidentally  consumed  by  fire  in  his  house  in  New  York 
the  same  night.  His  volumes  of  Bentham's  works  were  burned  at 
the  same  time,  and  he  could  not  find  them  in  any  bookstore  or 
library  in  New  York.  He  wrote  at  once  to  his  friend  Du  Ponceau, 
at  Philadelphia,  to  "  buy,  borrow,  or  beg"  them  for  him.  Du  Pon- 
ceau appears  to  have  got  them  for  him  and  is  thanked  for  his 
trouble.  At  sixty  years  of  age  he  began  the  work  anew,  com- 
pleting it  two  years  later.  He  had  substantially  abandoned  his 
Southern  residence  and  resumed  his  domicile  in  New  York  at  this 
time,  where  much  of  this  draft  was  prepared.  Mr.  Livingston, 
beginning  in  1822,  represented  Louisiana  three  terms  in  the  lower 


\ 


14 

house  of  Congress  and  two  years  in  the  Senate.  During  this  time 
he  and  Bentham  corresponded  and  exchanged  their  respective 
works.  He  left  the  Senate  to  serve  as  Secretary  of  State  of  the 
United  States,  and  Minister  to  France. 

Louisiana,  ahenated  by  his  long  absence,  never  adopted  this  crim- 
inal code,  but  it  was  published  in  both  our  own  country  and  Europe, 
and  at  once  raised  its  author's  fame  as  a  publicist  to  the  highest 
rank.  Founded  on  the  French  Code  it  was  marked  throughout 
by  the  direct  influence  of  Bentham,  to  whom  he  long  after  wrote, 
**  Although  strongly  impressed  with  the  defects  of  our  actual  penal 
law,  yet  the  perusal  of  your  works  first  gave  method  to  my  ideas 
and  taught  me  to  consider  legislation  as  a  science  governed  by  cer- 
tain principles  applicable  to  all  its  branches."  The  code  was  wel- 
comed the  world  over.  Letters  of  eulogy  came  from  President 
Jefferson,  the  Emperor  of  Russia,  and  the  King  of  Sweden.  Victor 
Hugo  wrote,  "  You  will  be  numbered  among  the  men  of  this  age 
who  have  deserved  most  and  best  of  mankind;"  and  Kent  said  he 
had  done  more  than  any  legislator  of  the  age.  The  King  of  the 
Netherlands  sent  him  a  gold  medal,  and  the  government  of  Guate- 
mala caused  his  Code  of  Reform  and  Prison  Discipline  to  be  trans- 
lated and  adopted  word  for  word.  Bentham's  works  in  their 
French  dress  had  had  an  immense  sale  in  Spanish  America,  and 
an  important  influence  in  forming  the  ideas  of  the  founders  of 
their  republics.  The  unstable  lot  of  those  governments  perhaps 
illustrates  the  dangers  of  exotic  reforms. 

Livingston  studied  clearness  in  his  codification,  and  was  used  to 
read  what  he  had  prepared  to  persons  unskilled  in  law  and  test  the 
excellence  of  his  composition  by  their  ability  to  comprehend  it.  He 
prepared  a  book  of  definitions  for  all  terms  which  he  thus  found 
difficult  of  understanding.  Something  like  this  system  of  definition 
is  found  in  the  later  Indian  and  English  codification.  It  is  related, 
as  illustrating  the  success  of  his  practice  code  in  doing  away  with 
difficulties,  that  a  young  lawyer  from  another  State  consulted  him 
as  to  how  long  he  would  require  to  familiarize  himself  with  the 
Louisiana  practice.  Livingston,  with  whom  he  was  engaged  to 
dine  at  four  on  the  next  day,  replied  he  would  promise  to  teach  it  to 
him  before  that  time,  and  he  records  that  he  was  successful  in  so 
doing.  Livingston  revised  his  penal  code  for  federal  enactment, 
and  March  3,  1 83 1,  introduced  it  in  the  Senate.  It  was  ordered 
printed  for  further  consideration  ;  but  when  the  Senate  again  con- 
vened he  was  no  longer  a  senator,  and  it  was  not  further  considered. 


15 

He  had  by  this  time,  under  the  will  of  his  sister,  the  widow  of 
General  Montgomery,  who  fell  at  Quebec,  succeeded  to  a  fine 
estate  upon  the  Hudson,  and  had  returned  to  make  his  home  there; 
and  there  he  died  in  his  seventy-second  year  from  a  sudden  illness, 
when  his  strength  seemed  hardly  abated. 

It  is  not  easy  to  trace  the  connection  between  these  Louisiana 
codes  and  the  important  movement  for  codification  having  its 
home  in  New  York  and  spreading  thence,  in  the  matter  of  practice 
and  procedure  at  least,  to  a  majority  of  the  several  States,  though 
it  seems  obvious.  The  leading  spirit  in  that  movement  was  the 
late  David  Dudley  Field,  called  "  the  greatest  codifier  since  Ben- 
tham."  I  have  examined  the  index  of  the  three  published  volumes 
of  his  works,  including  many  reports  and  addresses  on  codification, 
and  do  not  find  the  names  of  either  Bentham  or  Livingston  or  the 
Louisiana  Code  once  there  entered. 

However,  on  the  pages  themselves  I  find  Mr.  Field  referring  to 
Bentham's  great  work  on  Evidence  with  the  highest  praise,  and 
he  freely  quoted  from  Sir  J.  Fitz  J.  Stephen,  Bentham's  eminent 
disciple. 

Mr.  J.  Newton  Fiero,  whose  knowledge  of  the  subject  will  not 
be  doubted,  has  recently  declared,  "The  movement  in  favor  of  a 
clear,  simple,  and  concise  method  of  practice  began  with  the  criti- 
cisms of  Bentham  very  early  in  the  century,  and  resulted,  first,  in 
the  adoption  of  the  Code  of  Procedure  in  Louisiana,  as  drafted  by 
Edward  Livingston,  and  subsequently,  in  1846,  in  the  New  York 
Code  of  Procedure,  as  drafted  by  David  Dudley  Field  and  adopted 
and  continued  for  a  period  of  nearly  thirty  years. 

Mr.  Field's  general  codes,  it  may  be  said,  were  adopted  in  Cali- 
fornia and  Dakota, 

Revision  of  the  statutes,  behind  which  codification  often  lurks 
but  half  concealed,  is  now  almost  universal  in  our  several  States. 
The  commission  at  present  revising  our  federal  statutes  has  power 
to  report  changes,  and  the  Livingston  codes  have  commanded  the 
attention  of  at  least  one  of  the  members  of  that  commission.  The 
International  Law  Association,  which  in  August  last  held  its  first 
meeting  in  this  country,  is  seeking  the  codification  of  the  Law  of 
Nations,  the  most  elusive  and  sublimated  of  human  regulations 
whose  authority  and  sanction  may  still  be  invoked  as  law. 

Perhaps  the  hermit  of  Queen's  Square  Place  does  not  wholly 
deserve  the  commendation  of  his  great  editor  and  disciple,  Mill, 
that  "  he  found  the  philosophy  of  law  a  chaos,  he  left  it  a  sci- 


t 


i6 

ence."  It  is  certainly  not  yet  a  perfected  science;  but  no  one  can 
trace  the  course  of  legislation  in  England  or  in  the  United  States, 
or  on  the  continent  of  Europe,  or  in  those  great  Asian  empires 
most  directly  affected  by  European  thought,  without  concluding 
that  though  Bentham's  formal  codes  were  "  refused  and  rejected  of 
men"  and  of  nations,  yet  we  may  say,  without  flippancy  or  dispute, 
that  the  soul  of  the  great  utilitarian  and  codifier  "  goes  marching 
on." 

When  he  found  death  approaching  he  characteristically  said  to 
his  attending  friend,  "I  now  feel  that  I  am  dying;  our  care  must 
be  to  minimize  the  pain.  Do  not  let  any  of  the  servants  come 
into  the  room,  and  keep  away  the  youths;  it  will  be  distressing  to 
them  and  they  can  be  of  no  service.  Yet  I  must  not  be  alone ; 
you  will  remain  with  me,  and  you  only;  and  then  we  shall  have 
reduced  the  pain  to  the  least  possible  amount."  This  was  his 
last  legislation.  His  body  was  embalmed  by  his  own  direction  and 
presented  to  University  College,  London,  where  it  still  is,  although 
no  longer  shown  to  the  public.  He  was  fully  persuaded  that  his 
plans  for  prison  reform  were  defeated  because  the  King  personally 
disliked  him,  and  in  consequence  he  wrote  a  volume,  only  a  part 
of  which  has  ever  been  printed,  entitled  "  History  of  the  War 
between  Jeremy  Bentham  and  George  the  Third,  by  one  of  the 
Belligerents."  The  war  is  over,  and  the  grave  has  claimed  sovereign 
and  subject  alike;  but  in  both  Great  Britain  and  a  far  wider  region 
the  dominion  of  the  sage  seems  to  outlast  the  dominion  of  the 
King,  and  his  radical  but  benevolent  philosophy  exercises  a  far- 
reaching  influence. 

President  Madison  wrote  to  Bentham,  some  eighty-three  years 
ago  (1816),  declining  his  proposals  to  prepare  a  complete  code  for 
the  United  States,  and  in  his  letter  said  of  these  proposals,  *'  Al- 
though we  cannot  avail  ourselves  of  them  in  the  mode  best  in  itself, 
I  do  not  overlook  the  prospect  that  the  fruits  of  your  labors  may, 
in  some  other,  not  be  lost  to  us."  It  is  submitted  that  this  fragmen- 
tary review  of  the  subject  indicates  that  they  were  not  "  lost  to  us  " 
or  to  the  world. 


'J^ 


